Metatags are invisible terms embedded into the code of websites, and once upon a time, circa 1995 and 1996, keyword metatags were used by search engines to help them rank sites in search results. Google and most other search engines ignore metatags for search engine ranking purposes, and although the white on white text may have had a nominal effect, the defendant basically wasted about half a million dollars for an activity that may have diverted no customers. It is also critical to note that the Venture Tape court held that, although there was no evidence of actual confusion, actual confusion is not a necessary prerequisite of finding a Lanham Act violation. While formulaically correct in its legal analysis, let’s look at the practical result of the court’s holding. Basically, this holding means that a business entity may be ordered to turn over profits (in fact, all of the profits – 3 years worth) made during a period of embedding a competitor’s trademarks in its metatags and hidden text, even if there are no diverted customers and no customers are even aware of such use, let alone confused, at least in the First Circuit.

The federal courts are, in fact, divided on the issue of whether embedding a competitor’s trademark into metatags of one’s website constitutes a trademark violation. For example, in FragranceNet.com, Inc. v. FragranceX.com, Inc., 493 F.Supp.2d 545 (E.D.N.Y. 2007), the Eastern District of New York held that embedding a competitor’s trademark into the metatags of one’s website is not a “use in commerce” under the Lanham Act. However, in J.G. Wentworth, S.S.C. Ltd. Partnership v. Settlement Funding LLC, No. 06-0597, 2007 WL 30115 (E.D.Pa. January 4, 2007), the Eastern District of Pennsylvania held that such use was a “use in commerce” under the Lanham Act, but the court found that there was no likelihood of confusion arising out of such use. “Due to the separate and distinct nature of the links created on any of the search results pages in question, potential consumers have no opportunity to confuse defendant’s services, goods, advertisements, links or websites for those of plaintiff.” Id. at 8. However, as noted above, some courts, such as the Venture Tape court, will punish you sorely for using a competitor’s trademark in your website’s metatags.

Petitioners Richard and June Ottinger alleged that defamatory statements were made about them regarding their house-building plans by three anonymous bloggers on a blog hosted by the New York Journal News. Petitioners served The Journal News with a subpoena to ascertain the names of the bloggers, and the News moved to quash.

Turning to persuasive authority from the Superior Court of New Jersey, Appellate Division in Dendrite International v. Doe, 775 A.2d 756 (2001) and the Delaware Supreme Court in Doe v. Cahill, 884 A.2d 451 (2005), the New York court established a standard to determine when expedited discovery should occur and when an internet service provider must disclose the identity of an anonymous blogger who has made allegedly defamatory statements.

Four guidelines were established in Dendrite that the Supreme Court of New York applied to the case at hand.

1. Plaintiffs should take all efforts to notify the anonymous blogger “that they are the subject of a subpoena or application for an order of disclosure, and [the court should] withhold action to afford the fictitiously-named defendants a reasonable opportunity to file and serve opposition to the application”—i.e., plaintiffs need to post a message on the blog to let the bloggers know they are being subpoenaed.

2. Plaintiffs must identify the exact postings they allege are defamatory.

3. All information must be evaluated to determine whether plaintiffs have a prima facie cause of action. Plaintiffs must produce sufficient evidence supporting all elements of the cause of action.

4. Defendant’s right of free speech must be balanced against the strength of the prima facie case and the necessity for disclosure.

Cahill elaborated on the third step. Evidence of “actual malice” may be required in a defamation suit. However, it is an almost impossible element for the plaintiff to produce evidence for, because it is not within the plaintiff’s control; therefore, the plaintiff is not required to produce evidence on this element.

The court applied each of the four steps to the complaint alleged by the Ottingers and denied the New York Journal News’ motion, ordering the newspaper to disclose all pertinent information on the anonymous bloggers within five days.

In other words, do not automatically assume the Internet is a free-for-all forum where you can remain in the shadow of your words—light may be shed on your identity at the other end of the tunnel.

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In a lawsuit filed in August 2007, American Airlines claimed that Google violated its trademark rights by allowing competitors to bid on keyword search text containing its brand name in order to generate “sponsored links” on search result pages. Google claimed that this “invisible use,” which did not generate any advertisements using American Airlines’ name, did not violate any trademark.

While the precise impact of the settlement on use of the term “American Airlines” as a keyword search term is not known, Google may have agreed to halt bidding on “American Airlines” as a keyword. In several searches conducted by our office, no sponsored link (other than those sponsored by American Airlines itself) appeared when a Google search was conducted using “American Airlines.” In contrast, Google searches on other airlines generated numerous sponsored links by discount airfare vendors.

Whatever its agreement with American Airlines, however, it is clear that, at least for the moment, Google remains free to allow competitors to bid on keyword search text for other trademarks.

From Watergate and the Pentagon Papers to Iran-Contra and Abu Ghraib, journalists have used information from confidential sources to reveal illegal conduct by our government. It is vital to our democracy that we protect the people who are the sources for the exposes that are reported in newspapers, magazines and books and broadcast in news programs on television and radio. KATHLEEN M. CONKEY and NORMAN GREEN will discuss the importance of confidential sources to a free press.

Kathleen Conkey, a First Amendment and media lawyer, is Of Counsel to the media law boutique firm of Jacobs deBrauwere, LLP, in New York City. Prior to returning to private practice in 2007, she was Vice President and Senior Counsel in the Intellectual Property and Litigation department of MTV Networks, where she was primarily responsible for pre-broadcast review of the network’s many productions.

Norman Green won the NAACP Image Award for his hidden-camera investigation of racial profiling called “Driving While Black.” In 2006, he executive produced “New Year Baby,” about a family’s flight from the Khmer Rouge, which won the “Movies That Matter” Human Rights Watch Award and is currently airing on Independent Lens, as well as touring festivals around the world. Last year he directed “I’m From Rolling Stone,” a 10-part series for MTV Networks about aspiring journalists and in 2005 and 2006, he produced two documentaries for Viacom’s LGBTQ network, Logo: “The Elephant in the Room” following gay Republicans, and “Latino Beginnings” about gay Latinos.

ABFFE is the bookseller’s voice in the fight against censorship. The MLRC Institute is a not-for-profit educational organization focused on the media and the First Amendment. This presentation is part of a larger initiative sponsored by the McCormick Tribune Foundation, which has funded the MLRC Institute to create a Speakers Bureau to educate the public on the reporter’s privilege. More information about the Speakers Bureau and the MLRC Institute is available at www.medialaw.org.

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Stevens v. Publicis, S.A. et al., (2008 NY Slip Op 02880) involved a three-year employment contract, under which plaintiff’s duties were described as the “customary duties of a Chief Executive Officer.” Six months into the employment period, trouble arose and the plainitff CEO was given three options—leave the company; stay, but work only on new business not as a CEO; or come up with another bright idea for what to do with his time.

As is increasingly the case in modern business practice, the deposed CEO began an email exchange with his boss over the three options. After some time, the boss set out his understanding of the deal points the two had agreed upon—that the former CEO would stay on, but devote the vast majority of his time to new business development, with only 10% of his time to be spent on management and operations.

“Many business people are still unaware of the sweeping changes in contract creation brought about by electronic signatures.”

The plaintiff sent a reply email the next day saying, “I accept your proposal with total enthusiasm and excitement…” to which his boss replied the same day, “I am thrilled with your decision.”

And oh yes, each of the three emails bore the typed name of the sender at the foot of the message.

Under the Statute of Frauds, contracts to be performed in a period beyond one year must be evidenced by a “signed writing.” In addition, in this case, the plaintiff’s employment agreement itself required that any modifications be signed by all parties.

So, did the email exchange constitute a “signed writing?” Was it a modification “signed by all parties?”

Yes, on both counts according to the First Department.

Many business people are still unaware of the sweeping changes in contract creation that have been wrought by the 2000 Electronic Signatures in Global and National Commerce Act, 15 USCA Sec.70001 et seq. (the “ESign Act”) and recent case law interpreting the meaning of a signature. Essentially, under ESign, a signature or contract “may not be denied legal effect, validity or enforceability solely because it is in electronic form.” Further, even without citing ESign, another recent New York case held that a deal for the sale of real property (always subject to the Statute of Frauds) could be created and signed by the email sender’s “act of typing his name at the bottom of the email [which] manifested his intention to authenticate this transmission for Statute of Frauds purposes. “ Rosenfeld v. Zerneck, 4 Misc. 3d 193, 776 N.Y.S. 2d 458 (Sup. Ct. Kings Co., NY, May 4, 2004).

Stevens v. Publicis gives no clue as to whether the parties actually typed their own names at the bottom of each of their messages or if the names popped up as part of auto-signatures widely used on business emails. Either way, if the terms outlined in the email are specific enough to constitute a contract, the fact that the signature is electronic rather than hand signed will not preclude the formation of a contract. So, be careful what you automatically-e-sign!

The CDA § 230 states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Under § 230 an “information content provider” is defined as one who is “responsible, in whole or in part, for the creation or development of” content.

First, the court held Roommate could not be immunized for the questions it posed via drop down menus.

The FHA makes it unlawful to ask certain discriminatory questions for a very good reason: Unlawful questions solicit (a.k.a.“develop”) unlawful answers. Not only does Roommate ask these questions, Roommate makes answering the discriminatory questions a condition of doing business. This is no different from a real estate broker in real life saying, “Tell me whether you’re Jewish or you can find yourself another broker.”When a business enterprise extracts such information from potential customers as a condition of accepting them as clients, it is no stretch to say that the enterprise is responsible, at least in part, for developing that information.

Id. at *4.

Furthermore, the court held Roommate could not be immunized by § 230 based on the way it channeled and filtered information.

Here, Roommate’s connection to the discriminatory filtering process is direct and palpable: Roommate designed its search and email systems to limit the listings available to subscribers based on sex, sexual orientation and presence of children. Roommate selected the criteria used to hide listings, and Councils allege that the act of hiding certain listings is itself unlawful under the Fair Housing Act, which prohibits brokers from steering clients in accordance with discriminatory preferences. We need not decide the merits of Councils’ claim to hold that Roommate is sufficiently involved with the design and operation of the search and email systems-which are engineered to limit access to housing on the basis of the protected characteristics elicited by the registration process-so as to forfeit any immunity to which it was otherwise entitled under section 230.

Id. at *7.

The court arrived at the aforementioned conclusion by defining “development” as follows.

We believe that both the immunity for passive conduits and the exception for co-developers must be given their proper scope and, to that end, we interpret the term “development” as referring not merely to augmenting the content generally, but to materially contributing to its alleged unlawfulness. In other words, a website helps to develop unlawful content, and thus falls within the exception to section 230, if it contributes materially to the alleged illegality of the conduct.”

Id. at *5.

The court, in an attempt to clarify the meaning of “develop” may have broadened (or at least blurred) its definition. Drawing the line as to whether an interactive service provider is a “developer” of information may become more difficult in the future.

However, the 9th Circuit held that Roommate would be immunized by § 230 for what people wrote in response to the “Additional Comments” section, because the input field was open-ended.

Lurking behind the holding could be the view that the internet has matured and is no longer a new medium to be treated with deference in order to let it develop.

The Internet is no longer a fragile new means of communication that could easily be smothered in the cradle by overzealous enforcement of laws and regulations applicable to brick-and-mortar businesses. Rather, it has become a dominant-perhaps the preeminent-means through which commerce is conducted. And its vast reach into the lives of millions is exactly why we must be careful not to exceed the scope of the immunity provided by Congress and thus give online businesses an unfair advantage over their real-world counterparts, which must comply with laws of general applicability.

Id. at *3, n.15.

Ah, the pendulum has indeed begun to swing away from broad § 230 immunity. As most web services gain their functionality through channeling and filtering information, expect plaintiffs to read the holding of this decision broadly.

See “Tension Over Sports Blogging,” by Tim Arango.

For some media representatives, the issue of conditions on credentials has First Amendment and antitrust ramifications. According to the Times’ report, Sandra Baron, executive director of the Media Law Resource Center, said: “My view is that this is news gathering, and I look for legal responses to any effort to clamp down on news gathering. What I see is a strident effort by a powerful monopoly to control information. They have a monopoly on the game. Now they want to have a monopoly on the information.”

For its part, MLB argues that too much video and audio on a nonaffiliated website could infringe the rights of broadcasters who have paid millions to carry live games, as well as attract traffic away from the lucrative websites run by MLB and its teams. And MLB also disputes the notion that it is poaching on the media’s turf, and not the other way around. As MLB views it, 10 years ago, newspapers and magazines had no more of a stake in the Internet or the world of video and audio than MLB.